Say Yes to Her Redress: A Two-Step Approach to Post-Divorce Embryo Disputes


I can’t believe Taylor Swift is about to turn 30 – she still looks so young! It’s strange to think that 90% of her eggs are already gone – 97% by the time she turns 40 – so I hope she thinks about having kids before it’s too late! She’d be a fun mom. [1]

Readers may remember the uproar alt-right propogandist Stefan Molyneux created when he delivered this bizarre commentary on singer Taylor Swift’s ovaries via Twitter in 2019. The internet was quick to defend Swift, rightly calling the tweet creepy and misogynistic.[2]

It is also, however, scientifically accurate.[3] Though it should go without saying that speculating about women’s reproductive capabilities on Twitter is inappropriate, to say the least, it is true that women have twelve percent of their egg supply left at age thirty, and three percent by the time they turn forty.[4] Age is an aspiring mother’s worst enemy;[5] women are born with all the eggs they will ever have and once they reach menopause, they are out for good.[6]

In vitro fertilization (“IVF”), a fertility treatment, is becoming more popular as women wait longer than ever to start a family.[7] IVF involves extracting eggs from a woman’s uterus, fertilizing them in a laboratory, and inserting the resulting embryos directly back into the uterus. However, women also have the option of freezing their fertilized embryos until they are ready for implantation. Freezing is often chosen by those who are not yet ready for children but want to preserve the option, women who want a safety net before undergoing chemotherapy or something else that will wreak havoc on their reproductive system, and those who have leftover embryos from an IVF cycle that they want to save for potential later use.[8] Though it is becoming increasingly common, IVF is an expensive, invasive, and painful procedure for women, and, as with any surgery, comes with risks.

Unfortunately, while most frozen embryos withstand the test of time,[9] many marriages do not.[10] Upon divorce, a couple has to decide what to do with their frozen embryos, and that question becomes thorny if they cannot agree. Currently, courts use one of three methods to determine what happens to embryos upon divorce when the ex-spouses do not see eye to eye. The Contractual Method strictly follows the fertility clinic’s consent forms the spouses signed before undergoing IVF, ignoring the uniquely emotional and one-sided nature of those forms. The Contemporaneous Mutual Consent Method refuses to award the embryos to either spouse for any purpose unless and until the ex-couple can agree on an outcome, leaving the parties in limbo. The Balancing Method looks at the facts of each individual case and decides which spouse’s rights should prevail. The potential application of three different methods means that outcomes are often unpredictable and arbitrary. Because these cases are relatively novel, most states have no established precedent, and courts have little guidance as to which method they should choose. Family law is a state issue, so there is no federal law or precedent on the subject either.

Nonetheless, trends have emerged in the way courts resolve embryo dispute cases. Most courts undermine or completely ignore the disproportionate burden women face both during and after the IVF process as compared to men. Courts also overwhelmingly rule against the spouse who seeks implantation, which in most cases is the woman. They ignore the fact that, for many of these women, the frozen embryos are their only chance at becoming parents, and instead allow them to be destroyed, donated, or held in storage indefinitely. These trends are not only unfair but also go against both the language and purpose of existing law. This Note proposes a two-step approach to embryo disputes between heterosexual, divorced couples, in cases in which the wife was the egg donor. Embryos should be considered marital property, making their division fall under existing marital property dissolution statutes. Fundamentally, these statutes prescribe a fair split of marital assets, and a fair split of embryos means awarding them to the wife—every single time.

This Note intends to establish three points. First, the existing law in this area is not adequate and often causes more irreversible harm than good. Second, this corner of the law is yet another area where women and their suffering are undermined and overlooked. Finally, although this proposed two-step approach may initially seem somewhat radical, existing law is generally amenable to it already. With nearly 1.5 million frozen embryos currently in storage,[11] legal experts predict that these cases “will continue to pile up in courts”[12]—if nothing else, a realistic, fair, and sustainable solution is needed for efficiency purposes.

Part I explains the process of IVF and how embryo dispute cases are currently decided. It begins by underlining how women face a substantially disproportionate burden throughout the IVF process, but courts have had a tendency to dismiss that disparity when deciding embryo disputes. Part II analyzes embryo disputes in the context of a property framework. It argues that embryos should be considered property—marital property, to be specific—and discusses how states currently define embryos, as well as how statutes govern the division of marital property upon divorce. While states have their own marital dissolution statutes, the crux of each one is that, above all else, the division should be fair. Part III details the thrust of the argument—that due to the disproportionate burdens women face both during and after the IVF process, a fair split, as required by these statutes, will always entail giving the woman possession of the embryos upon divorce, regardless of the facts of each case.

          [1].      Chris Stokel-Walker, Is the Worst Tweet Ever Really the One About Taylor Swift’s Eggs?, Input (Oct. 8, 2021, 10:15 AM) (quoting @StefanMolyneux, Twitter (Dec. 9, 2019, 7:20 PM)),
an-molyneux []. Molyneux has since been banned from Twitter.

          [2].      Isabel Jones, The Internet Is Coming to Taylor Swift’s Defense After an Alt-Right Troll Tweeted About Her Egg Count, InStyle (Dec. 10, 2019, 11:15 AM), [].

          [3].      Actually, it may be one of the only scientifically accurate statements Molyneux has ever made. See Stefan Molyneux, S. Poverty L. Ctr.,
individual/stefan-molyneux [].

          [4].      See W. Hamish B. Wallace & Thomas W. Kelsey, Human Ovarian Reserve from Conception to the Menopause, 5 PLOS One 1, 4 (Jan. 27, 2010).

          [5].      Risk Factors, U.C.S.F., [].

          [6].      Normal Ovarian Function, Rogel Cancer Ctr., [].

          [7].      See Danielle M. Ely & Brady E. Hamilton, Trends in Fertility and Mother’s Age at First Birth Among Rural and Metropolitan Counties: United States 2007–2017, at 1, 5, Nat’l Ctr. for Health Stats (2018).

          [8].      The number of embryos inserted is carefully controlled in an attempt to
avoid multiple births and the associated risks. See In Vitro Fertilization (IVF), Mayo Clinic, [

          [9].      See Pam Belluck, What Fertility Patients Should Know About Egg Freezing,
N.Y. Times (Mar. 13, 2018), [].

        [10].      See Erin McDowell, 13 Surprising Facts About Divorce in the US, Insider
(July 30, 2020, 8:52 AM), [].

        [11].      See Marilynn Marchione, In Limbo: Leftover Embryos Challenge Clinics, Couples, Med. Xpress (Jan. 17, 2019), [].

        [12].      Mark F. Walsh, Arizona Law Determines Fate of Frozen Embryos in Divorce Cases, A.B.A. J. (Dec. 1, 2018, 2:20 AM),
embryos_divorce [].

*.      Senior Submissions Editor, Southern California Law Review, Volume 95; J.D. Candidate 2022, University of Southern California Gould School of Law; B.A. Philosophy-Neuroscience-Psychology 2016, Washington University in St. Louis. Thank you to Professor Scott Altman for his invaluable guidance throughout the Note-writing process and to the Southern California Law Review staff and editors for all of their hard work. Above all, thank you to my family for their love and support and to my friends for their outlines and comic relief.

A Proposed Cure: More Expansive Conversion Therapy Legislation and the Limits of Parental Rights – Note by Nicole A. Meier

Article | Family Law
A Proposed Cure: More Expansive Conversion Therapy Legislation and the Limits of Parental Rights
by Nicole A. Meier*

From Vol. 93, No. 2 (January 2020)
93 S. Cal. L. Rev. 345 (2020)

Keywords: Sexual Orientation Change Efforts (“SOCE”), Conversion Therapy, Parental Rights

This Note will propose and examine the constitutional bounds of more expansive legislation that targets not just SOCE at the hands of state-licensed mental healthcare providers, but also at the hands of unlicensed providers—specifically religious leaders. Though more expansive legislation would likely trigger constitutional objections under the First Amendment, particularly with respect to free speech and free exercise rights, this Note will examine the constitutionality of this proposed legislation through the lens of parental rights under the Fourteenth Amendment.

This Note will proceed in the following order: Part I will examine the history and nature of SOCE, detail the current position of mainstream mental health professional associations regarding SOCE, and analyze current SOCE legislation and its deficiencies. Part II will propose more expansive SOCE legislation and establish that such legislation would not unconstitutionally infringe upon parental rights under the Fourteenth Amendment. Part III will analyze the limits that the Supreme Court has hitherto placed on parental rights, taking the defined limits of these rights in light of claims of religious freedom into special consideration. Parts IV and V will respond to anticipated critiques of the proposed legislation, focusing on the potential ease with which the legislation may be evaded and the ramifications that the legislation may have with respect to parental rights. Finally, Part VI will provide several policy justifications for the proposed legislation.

*. Senior Editor, Southern California Law Review, Volume 93; J.D. Candidate 2020, University of Southern California Gould School of Law; B.A. Philosophy 2016, Santa Clara University. Thank you to my parents, Josh and Barbara, for all of their encouragement and support. In addition, thank you to Professor Camille Gear Rich for encouraging me to pursue this topic and for her guidance during the drafting of this Note, and to Professor Scott Altman for his insight during the editing process. Finally, thank you to the talented Southern California Law Review editors for their excellent work.

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Early Childhood Development and the Law – Article by Clare Huntington

From Volume 90, Number 4 (May 2017)

Early childhood development is a robust and vibrant focus of study in multiple disciplines, from economics and education to psychology and neuroscience. Abundant research from these disciplines has established that early childhood is critical for the development of cognitive abilities, language, and psychosocial skills, all of which turn, in large measure, on the parent-child relationship. And because early childhood relationships and experiences have a deep and lasting impact on a child’s life trajectory, disadvantages during early childhood replicate inequality. Working together, scholars in these disciplines are actively engaged in a national policy debate about reducing inequality through early childhood interventions.

Despite the vital importance of this period, the law and legal scholars have been largely indifferent to the dynamics of early childhood development. Doctrine and legislation are rarely developmentally sensitive, lumping children into an undifferentiated category regardless of age. The legal system thus misses key opportunities to combat inequality and foster healthy development for all children. And most legal scholars do not engage with the wealth of interdisciplinary research on early childhood, nor are they part of the interdisciplinary dialogue and policy debates. As a result, that conversation does not include the voices of lawyers and legal scholars, who are uniquely positioned to add critical insights.

Remedying this stark disconnect requires doing for law what scholars have done in other disciplines: creating a distinctive field. Accordingly, this Article proposes a subdiscipline of early childhood development and the law. The new field crystallizes a distinctive interest that the legal system must attend to and charts a path for legal scholars to follow for years to come. As with the dawning of fields such as juvenile justice, domestic violence, and elder law, early childhood development and the law will be a focal point for research within the legal academy, a vital bridge to scholars in other disciplines, and an important means for bringing lawyers and legal scholars to the heart of emerging policy debates.



Psychotropic Medication and Foster Care Children: A Prescription for State Oversight – Note by Michelle L. Mello

From Volume 85, Number 2 (January 2012)

On April 16, 2009, seven-year-old Gabriel Myers locked himself in the bathroom of his Florida foster home and took his own life. Just three weeks prior, Myers was prescribed Symbyax, a combination of antidepressant and antipsychotic drugs not approved by the U.S. Food and Drug Administration (“FDA”) for use in children. Myers’s Department of Children & Families (“DCF”) records document a tragic history of neglect, allegations of sexual abuse, and movement between at least four foster care placements after removal from his mother’s care. Diagnosed with attention deficit hyperactivity disorder, mood disorder, and possibly depression, Myers took several medications including Lexapro and Vyvanse. After his death, DCF appointed a Work Group to assess Myers’s case as well as the use of psychotropic medication for other children in state foster care. While the Work Group determined that safeguards in Florida existed, the “core failures in the system . . . stem[med] from lack of compliance with [such safeguards] and . . . failures in communication, advocacy, supervision, monitoring, and oversight.”

Giovan Bazan was only six-years-old when he was first treated with medication for hyperactivity. Years later, while taking Ritalin at a double dosage, he was prescribed an antidepressant after another physician saw him “so mellowed out that he barely reacted.” Twenty-year-old Bazan is now free of all medications and recognizes that “[t]hey start you on one thing for a problem, then the side effects mean you need a new medicine . . . [a]s a foster kid, I’d go between all these doctors, caseworkers, therapists, and [it] seemed like every time there was a new drug to try me on.”



Of Financial Rights of Assisted Reproductive Technology Nonmarital Children and Back-Up Plans – Postscript (Response) by Dara E. Purvis

From Volume 84, Number 1 (November 2010)

Responding to Courtney G. Joslin, Protecting Children (?): Marriage, Gender, and Assisted Reproductive Technology, 83 S. Cal. L. Rev. 1177 (2010).

In her article, Courtney G. Joslin persuasively argues that the children born via assisted reproductive technology (“ART”) are placed at a serious financial disadvantage under the law. Joslin is right to point out that parentage provisions that apply only to children born to heterosexual married couples disadvantage nonmarital children of ART financially as well as emotionally and developmentally. Joslin’s solution is to propose extending to such children what she terms the “consent = legal parent” rule, meaning that “any individual, regardless of gender, sexual orientation, or marital status, who consents to a woman’s insemination with the intent to be a parent is a legal parent of the resulting child.” Such a rule removes a period of time during which a child is unprotected by the lack of legal recognition of a parent. This response identifies an ambiguity in and proposes a clarification of Joslin’s consent = legal parent rule with regard to conception, and with regard to consent during the period after conception and before birth.



Protecting Children(?): Marriage, Gender, and Assisted Reproductive Technology – Article by Courtney G. Joslin

From Volume 83, Number 6 (September 2010)

The Supreme Court has declared that children should not be penalized based on the circumstances of their birth. In the context of assisted reproductive technology (“ART”), however, parentage provisions that apply only to children born to heterosexual married couples continue to be the rule rather than the exception. Many of the policymakers resisting the calls for reform have been influenced by the debate currently playing out in the same-sex marriage context regarding the causal connection (or lack thereof) between marriage and gender, on the one hand, and positive child welfare outcomes, on the other. 

This Article approaches this increasingly contentious debate in a novel way by focusing on an issue on which both sides converge—the desire to protect the well-being of children. Using this lens, the Article accomplishes two things. First, this Article offers a doctrinal analysis of an issue that, until now, has remained almost entirely unexplored. Specifically, the Article demonstrates that, contrary to the asserted child welfare goals of marriage-preference proponents, marriage-only ART rules harm the financial and, in turn, the overall well-being of nonmarital children. Second, the Article considers how to reform the inadequacies of the current regime. After assessing a range of potential normative solutions, the Article concludes by proposing a new theoretical framework for determining the legal parentage of all children—both marital and nonmarital—born through ART.



Is the Family at Odds with Equality? The Legal Implications of Equality for Children – Article by Anne L. Alstott

From Volume 82, Number 1 (November 2008)

This Article revisits the liberal dilemma and suggests that one plausible version of liberalism can, at least in principle, combine wide diversity and freedom in family life with equal opportunity for children. But this conclusion arrives with two caveats. First, the theoretical compatibility of the family and equality of opportunity rests on three interpretations which remain contested even within liberal theory: the scope of parental autonomy, the meaning of equality of opportunity, and the functions ascribed to the liberal family. Second, the legal changes necessary to reconcile the family with equality would face practical and political difficulties. An egalitarian regime would require new redistributive programs and tax increases to fund them. A commitment to children’s equality would also require revision of constitutional and state law doctrines that prize parental authority and family economic self-sufficiency and disclaim positive obligations of the state toward children.



The Right Not to Be a Genetic Parent? – Article by I. Glenn Cohen

From Volume 81, Number 6 (September 2008)

Should the law recognize an individual’s right not to be a genetic parent when genetic parenthood does not carry with it legal or gestational parenthood? If so, should we allow individuals to waive that right in advance, either by contract or a less formal means? How should the law’s treatment of gestational and legal parenthood inform these questions? Developments in reproductive technology have brought these questions to the fore, most prominently in the preembryo disposition cases a number of courts have confronted—disputes over the use of stored frozen preembryos that couples have fertilized in the course of In Vitro Fertilization (IVF)— but other examples abound.